Monday, August 29, 2016

The Govt of India U - turn on surrogacy

The recent proposal by the government of India to pass a surrogacy
bill which bans commercial surrogacy has raised lots of hackles. Rather
than allow this to become a highly polarised debate which just creates
more heat rather than sheds light, let's first start the discussion with
the areas on which everyone agrees, and then move on to what the areas
of disagreement are , so we can see how we can bridge the gap.

I
think everyone agrees that surrogacy needs to be regulated. Calling
India the surrogacy capital of the world is hardly very complimentary.
Effectively, we are saying that simply because poor Indian women are
willing to be surrogates at a fraction of the cost at which women in
other parts of the world are, everyone should come to India for
surrogacy treatment because this is much more cost effective for them.
While this may make a lot of business sense, there's nothing to be proud
about this - it's a bit like tom-tomming the fact that we're the
diabetes capital of the world !

Let's look at why the government
felt the need to regulate surrogacy in the first place? After all, the
number of surrogacy cases which is done in the whole country is less
than 10000 per year, which is really a small number . Given that there
are so many other much larger health issues which affect Indians, is it
sensible for a government with limited resources to waste so much money
on regulating such a tiny problem. Can we afford to make a mountain out
of a molehill ?

The reality is that the government has been
forced to step in because the medical profession has failed to regulate
itself. The definition of a profession is that society grants
professionals certain special privileges , and in turn expects that they
will hold all their members to a minimum standard. This means the
profession has the right as well as the responsibility to regulate
itself. This means that the leaders of the profession have the duty of
pulling up and policing members who do not follow accepted guidelines ,
so that they cannot abuse the privileges which they have been granted
by virtue of being a professional.

Unfortunately , this doesn't
seem to happen in the medical profession in India today. Thus, when an
IVF doctor takes advantage of the fact that there is no law or
regulation , and performs completely unacceptable treatments because he
is not barred from doing so by the law, and other doctors ( who are
his peers and are meant to keep each other in check) keep quiet and do
nothing about this, then how can the government continue to remain a
silent bystander ? This abuse of professional privilege by unethical
doctors can ham patients.

Why do doctors keep quiet, even when
they squirm internally when they see other doctors doing what is
patently wrong ? This is partly because they feel it's not their job to
police other doctors , and partly because doctors don't want to say
anything bad in public about another doctor ( even though they may be
quite happy to bad-mouth each other in private) - after all, if you live
in a glass house , you don't want to throw stones at others.

The
malafide actions of a few bad doctors attracts so much bad press, that
the good work done by good doctors gets completely overshadowed. It's we
doctors who are to blame for this sad state of affairs, because we keep
quiet when some of our own colleagues do things which are completely
unacceptable. We are now paying the price for our silence. The
government quite rightly concludes that if we can't regulate ourselves ,
then they will have to step in and control the few bad elements amongst
us.

Unfortunately , the problem is that government regulation is
heavy handed and clumsy, and often ends up throwing the baby with the
bathwater, which is exactly what's happened in this case. They've
proposed a solution which extremely complex and expensive , because this
all the government machinery allows them to do - after all, if you have
a hammer, all you see are nails !

If you look at the tiny
numbers of surrogacy cases being done today, in the big picture this
issue is extremely unimportant from the overall health perspective of
this country . We have far more pressing and urgent issues which the
health ministry should be addressing . This distraction is going to come
at a huge cost, because funds and resources which should go to setting
up new primary health care centers gets diverted into policing
surrogacy. The health ministry has better and more important things to
do, and the return on investment in taking this punitive approach is
very poor.

This is the big problem with the legislation - that
most laws are punitive. They're not progressive or permissive , unlike
the other constructive initiatives taken by the government - for
example, giving all citizens an Aadhaar Card .

This is what has
upset so many doctors. We feel the government keeps on and telling us
what we can and what we cannot do. Our professional autonomy is being
progressively eroded, and all of us are being treated as potential
criminals. While regulation may be needed for controlling bad doctors ,
good doctors take offence when they are subjected to it, and many will
treat this as a personal affront.

The truth is that things have
come to this sorry pass because we doctors have chosen to turn a blind
eye to the transgressions of our colleagues. It's because we refuse to
police ourselves that the government is forced to step in and police us .
If we had spoken up against the malpractices of our colleagues, the
government would not have felt the need to interfere

I have
also been very disappointed with the quality of the medical reporting.
There is one key issue which all reporters seem to have overlooked.
Let's look at the draft ART bill ( which was also supposed to regulate
surrogacy ), and which has been on the ICMR website for more than 10
years now.( You can download it from http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf
) It was crafted and fine-tuned after inviting public debate and
inputs from lots of specialties. This draft clearly allows only
commercial surrogacy , and also has a format for the legal contracts
which the surrogate and the intended parents have to sign before they
can start surrogacy treatment . This was the stance of the Government of
India for many years, and these were the guidelines which good IVF
clinics were voluntarily following when doing surrogacy . In a few
months , why has the government taken a complete u-turn and decided to
completely ban commercial surrogacy ? Who made this change , and why did
they make it? There's been a complete lack of transparency and this
upsets everyone.

Many healthcare activists have criticised the
bill because they feel it encroaches on a citizen's personal autonomy.
They believe it is unfair because it takes away the right of citizens to
choose their reproductive destinies. Their claim is that the government
should not behave like a nanny state by interfering in such personal
and private matters . It should allow people the freedom to decide for
themselves , and if a single man decides to have a baby through
surrogacy , and if the surrogate is willing to carry the pregnancy for
him for the sake of money, they should be allowed to do so .

The
problem is that it's not so simple. Intended parents are rich, while
the surrogates are poor, and because IVF doctors make a lot of money by
doing the surrogacy treatment, the incentives can be quite perverse.
When such large sums of money are involved, there are likely to be
unscrupulous doctors and other middlemen who will take advantage of the
situation, and exploit these women. We do need to protect them before
the matter gets out of hand. It's all very well to speak about the
surrogate's right to choose , but we cannot ignore the fact that some
unscrupulous doctors are making a quick buck by doing surrogacy for
infertile couples who don't need it, only in order to maximise their
revenue. We have to accept this bitter truth - that not all doctors are
upright and ethical. If we refuse to do so, the government is justified
in saying that doctors are living in a fool's paradise by pretending
that all doctors are upright and honest; and that all surrogates are
well-informed and capable of deciding for themselves.

As my colleague, Dr Ashwin Mohan thoughtfully commented,
1. Commercial surrogacy is not bad, commercialization of surrogacy is.2. Exploitative practices need to be penalised, not ethical practices. 3.Regulation is important, prohibition fails. 4. A rights based approach is best way to go with adequate checks and balances. 5. Criminalisation will make patients seek options 'underground' 6.
Every case of surrogacy can be referred to a competent board since it
is a planned procedure and approvals sought in cases of doubt. Sadly, we
believe in reflex action, not reflective action

We should work
together to achieve a win-win, and I think we can do this if doctors
and the government trust and respect each other, and not take a
confrontational approach.